State v. Agee

• Decision Date: 03 December 2015
• Docket Number: SC S059530.,CC 09C41224
• Citation: 358 Or. 325,364 P.3d 971
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Isacc Creed AGEE, Defendant–Appellant.
• Court: Oregon Supreme Court

358 Or. 325

364 P.3d 971

STATE of Oregon, Plaintiff–Respondent,

v.Isacc Creed AGEE, Defendant–Appellant.

CC 09C41224

SC S059530.

Supreme Court of Oregon, En Banc.

Argued and Submitted April 22, 2015.

Decided Dec. 3, 2015.

Ryan T. O'Connor, O'Connor Weber LLP, Portland, argued the cause and filed the briefs for petitioner. With him on the briefs was Kenneth A. Kreuscher.

Timothy A. Sylwester, Attorney General, Salem, argued the cause and filed the brief for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe and Michael S. Shin, Assistant Attorneys General.

BALMER, C.J.

This case is before us on automatic and direct review of defendant's judgment of conviction and sentence of death for aggravated murder. ORS 138.012(1). For the reasons that follow, we affirm the judgment of conviction, vacate the sentence of death, and remand this case to the circuit court for further proceedings.

I. BACKGROUND

We begin with an overview of relevant facts; we describe additional facts in our discussion of defendant's assignments of error. Because the jury found defendant guilty, we view the evidence presented at trial in the light most favorable to the state. State v. Washington, 355 Or. 612, 614, 330 P.3d 596 (2014).

In May 2005, defendant arrived at the Oregon State Penitentiary to begin serving a 40–year sentence for attempted murder and other offenses. In February 2008, defendant and his cell-mate, Davenport, entered the cell of a third inmate, the victim, when the doors to all the cells in the area were opened to permit the inmates to go to breakfast. Both defendant and Davenport were wearing gloves and were armed. Defendant had a seven-inch-long shank with a half-inch piece of sharpened metal on the end, sheathed in the plastic casing of a highlighter pen. Davenport was carrying a mesh laundry bag containing an almost four-pound piece of concrete wrapped in a stocking cap. The door to the cell closed after about 30 seconds, locking defendant and Davenport in the cell with the victim. Davenport began striking the victim in the head with the concrete block. Defendant stabbed the victim in the legs and torso 28 times with the shank.

A corrections officer heard panting and investigated. He saw two inmates standing in the cell, out of breath, and another on the ground; he yelled to another corrections officer for help. The two corrections officers saw Davenport standing in the back of the cell near the victim's head and defendant standing to the side of the cell, near the victim's torso and legs and next to a table in the cell. While the officers waited for other guards to arrive (to enable them safely to open the cell door), they saw Davenport strike the victim in the head about 20 times with the concrete block, and saw defendant kick the victim in the ribs and punch him in the chest with a closed fist. Defendant walked to the cell door and submitted to wrist restraints

as Davenport continued to strike the victim's head with the concrete block. Davenport also eventually submitted to restraints. Officers removed Davenport and defendant from the cell and a nurse confirmed that the victim was dead. While defendant was being escorted from the scene, a corrections officer asked him whether he was in possession of any weapons. Defendant responded no, he had left his weapon on the table in the cell. The shank was later found on the table. According to the state medical examiner, the victim died from the blows to the head with the concrete block. The shank caused only superficial wounds.

Defendant and Davenport were jointly charged with aggravated murder for the intentional homicide of a prison inmate by another inmate. ORS 163.095(2)(b) (defining aggravated murder as murder committed when defendant was confined in a correctional facility at time that murder occurred). The state declared its intention to seek the death penalty for both defendants. After Davenport provided the state with evidence of his mental incapacity dating back to his early teen years, the state conceded that Davenport was "mentally retarded"¹ and therefore ineligible for the death penalty under the controlling United States Supreme Court case, Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that execution of "mentally retarded" persons violates Eighth Amendment's ban on cruel and unusual punishment). Davenport subsequently pleaded guilty and was sentenced to life in prison without the possibility of parole.

Defendant also moved the trial court to declare him intellectually disabled and ineligible for the death penalty, but the state did not concede the issue as to him. Because, as we discuss in more detail below, there are no specific procedural or substantive guidelines in Oregon for determining when a defendant is ineligible for the death penalty under the general holdings of Atkins, the trial court determined that it would conduct a pretrial hearing at which defendant would have the burden of proving that he is intellectually disabled by a preponderance of the evidence. Defendant acceded to that procedure.²

In an April 2011 hearing, both the state and defendant offered evidence from psychologists and psychiatrists concerning defendant's mental health and intellectual abilities. The trial court found that defendant suffered from partial fetal alcohol syndrome but concluded that defendant had not established an intellectual disability that would make him constitutionally ineligible for the death penalty. In May 2011, a jury was empanelled and, after a guilt-phase trial, the jury found defendant guilty of aggravated murder. At the conclusion of a further, penalty-phase proceeding under ORS 163.150, the jury determined that defendant had acted deliberately in committing the murders, that he posed a continuing risk to society, and that he should receive a death sentence. ORS 163.150(1)(b)(A), (B), (D). The trial judge then entered a sentence of death. This automatic and direct review followed.

II. ASSIGNMENTS OF ERROR

On review before this court, defendant raises 29 assignments of error. We have reviewed all those assignments of error and conclude that many of them are not well taken and do not merit further discussion.³ We address defendant's remaining assignments of error below.

We discuss five assignments of error. Only one assignment of error concerns a ruling made during the guilt phase; we begin there.

A. The Trial Court's Decision to Permit Extensive Cross–Examination of Codefendant Outside Presence of Jury

At defendant's trial, after the completion of jury selection but prior to the jury being sworn, the trial court and both parties called to the stand eight inmates for the limited purpose of inquiring whether the inmates intended to invoke their privileges against self-incrimination if called as witnesses in front of the jury. One of those witnesses was Davenport. The trial court swore in Davenport and defendant conducted a limited examination about whether Davenport was willing to testify about the events on the day that the victim was killed and Davenport's involvement with a particular prison gang.⁴ Defense counsel asked and received answers to the following questions: whether Davenport understood that he would be asked about the events surrounding the murder and his involvement with the gang, whether Davenport would testify about those things, and whether he would invoke his Fifth Amendment privileges.

On cross-examination, after confirming that Davenport would testify about the events of the day of the murder, the prosecutor asked whether Davenport was prepared to testify about what happened during the week before the murder. Davenport initially responded that nothing had happened the week before. The prosecutor then asked Davenport if he was a "gangster." Davenport replied that he would not answer that question, but would testify about his involvement in the murder and exactly what happened that day. The prosecutor told Davenport that he was required to answer any question that was put to him and again asked whether Davenport was a gangster. Davenport continued to refuse to answer that question, and defense counsel began to object. The prosecutor interrupted the defense objection to complain to the judge that, if Davenport were not willing to answer the prosecutor's questions, he should not be allowed to testify at the trial at all. The court then conducted a colloquy with Davenport in which Davenport agreed to answer questions from both parties if he were called as a witness. The court directed the prosecutor to ask again about Davenport's gang involvement, to "test" Davenport's willingness to cooperate. The prosecutor posed multiple questions about Davenport's gang membership, his gang tattoos, his relationship with various gang members, his knowledge of the gang's power structure, and the role of the gang in the murder. During that questioning, Davenport at first attempted to avoid giving direct, truthful answers, even though the court reminded him several times that this was a "test run" to determine if he would cooperate with cross-examination. Davenport eventually began to answer the prosecutor's questions, although he frequently answered, "I don't know." From there, the prosecutor moved on to questions about Davenport's relationship with defendant, which Davenport answered directly.

The prosecutor then began asking Davenport specific and detailed questions about his and defendant's actions on the day of the murder:

"[PROSECUTOR]: And on the 14th, you keep saying that you're the one that did the killing.

"[DAVENPORT]: Yes, I did.

"[PROSECUTOR]: What weapons did you use?

"[DAVENPORT]: I used a knife and a chunk of cement.

"[PROSECUTOR]: Okay. Where was the defendant?"

Defendant objected for a second time, arguing that Davenport had made clear that he would answer questions about the day of the murder. The trial court overruled the objection and allowed ...